Abortion of Fetuses with Severe Abnormalities in Jewish Law

A fetus is considered a living entity in regards to certain laws, but there is no penalty of death for taking its life * Is the prohibition of aborting a fetus derived from the severe prohibition of murder, or the prohibition of causing unnecessary physical harm to the human body? * The dispute among contemporary poskim (Jewish law arbiters) about whether it is permitted to abort a fetus suffering from serious illnesses * The opinion of those poskim who hold that abortion is permitted only when the mother’s life is in danger * The opinion of poskim who hold that abortion is forbidden because of the prohibition of causing unnecessary physical harm to the human body, and consequently, if the fetus has a severe defect, abortion is permitted * The instruction of the former Chief Rabbi Avraham Shapira to publicize the opinion of the lenient poskim * In practice, it is proper to be lenient * An account of how our teacher and guide, Rabbi Tzvi Yehudah HaKohen Kook ztz”l, instructed to be lenient

Is it Permissible to Abort a Fetus Suffering from Severe Defects?

One of the difficult questions in Jewish law is when, during pregnancy, it becomes evident that a fetus suffers from severe defects: Is it permitted to terminate the pregnancy? In the past, such a question did not exist, because there was no way of checking the condition of the fetus. Yet, infants who suffered from significant defects usually died in infancy or childhood, since infant and child mortality was extremely high, and even among healthy children, over fifty percent of them did not reach their teens.

The Fetuses’ In-between Status

On the one hand, clearly it is forbidden to kill a fetus or cause it to die. Moreover, we are even commanded to desecrate the Sabbath in order to save a fetus – even if it has not yet reached the age of forty days. This is because the fetus will eventually become a living person, and as our Sages said (Yoma 85b), “Profane for his sake one Sabbath, so that he may keep many Sabbaths” (Bahag, Ramban, Peninei Halakha:Shabbat 27:3).

On the other hand, as long as the fetus is still in its mother’s womb, it does not have the din (legal status) of a living person, and therefore, although someone who kills a human being is deserving of death, one who kills a fetus is not. And since the fetus is not considered to be a living person, it does not have the right of inheritance as does a child already born, it is not defiled by the dead, and only from the moment of birth is it considered to be a human being (Nida 44a,b).

The Source for the Prohibition of Abortion

We learned in this week’s Torah portion: “He who spills human blood shall have his own blood spilled by man (in Hebrew, ‘ha’adam b’adam‘, literally, ‘the person within a person’), for God made man with His own image” (Genesis 9:6). From this verse, Rabbi Ishmael interpreted in a homiletic manner: Who is the person within a person? – This refers to a fetus, and one who kills it also deserves death (Sanhedrin 57b; Rambam Laws of Kings 9:4. It is important to note that the penalty of death referred to is only for B’nei Noah, in similar respect to a Ben Noah who steals a pruta (penny) is deserving of the death penalty; rather, this is the maximum punishment intended for deterrence, and is subject to the decision of the legal system of any given nation).

Nevertheless, the question is: What is the foundation of the prohibition of abortion? Is it because of murder, or the prohibition of chabalah (causing unnecessary physical harm to the human body)? Seemingly, the fact that the prohibition was mentioned in conjunction with the prohibition of murder means it is a derivative of murder. On the other hand, since the killing of a fetus had to be learned from a homiletic interpretation seemingly means that without this interpretation, we would not know that it is forbidden to kill a fetus, and hence, the prohibition of abortion is derived solely from the prohibition of causing unnecessary physical harm to the human body. Additionally, we have learned in the Torah (Exodus 21:22) that a person who arms a pregnant woman and causes her to miscarry is obligated to pay damages, implying that abortion is not considered murder.

The Stringent Opinion

In the opinion of Rabbi Unterman and Rabbi Feinstein abortion is forbidden indeed because of murder, and consequently, under no circumstances can a fetus be aborted, even if it is suffering from the most severe illnesses. Only in a situation when the pregnancy endangers the life of the mother is an abortion permitted, because her life takes precedence over the life of the fetus.

Some poskim (Jewish law arbiters) instructed to forbid abortions because of the seriousness of the matter and the value of human life, but did not regard abortion as actual murder. This was the instruction of Rabbi Auerbach and Rabbi Elyashiv (Nishmat Avraham, Choshen Mishpat 425, 1:1).

In a similar manner, in the responsa ‘Shevet Halevi’ (7,208; 9, 266), Rabbi Wosner rejected the words of those who believe that abortion is forbidden because of the prohibition of murder, but nevertheless, permitted abortion only in a situation of safek nefashot (possible danger to life).

Some poskim were machmir (stringent) because they took something else into consideration – the difficulty of trusting doctors, who often assert that the fetus is deformed, but in the end, a healthy baby is born. This was the inclination of Rabbi Ovadia Yosef (Yebiah Omer, section 4, E.H. 1), since it is a safek issur d’oreita (a possible Torahprohibition), and it is difficult to trust doctors.

The Lenient Opinion

Many poskim believe that abortion is forbidden because of the prohibition of causing unnecessary physical harm to the human body and hashchata (wanton destruction). So is it written the responsa ‘Maharit’ (1, 97) and responsa’ Chavot Yair’. Accordingly, in severe cases and to avoid great sorrow – there is room to consider permitting an abortion.

In the responsa ‘Rav Pealim’, the Ben Ish Chai was asked about a case of an ubar mamzer (a fetus conceived from a forbidden relation) in its fifth month – can it be aborted? He did not want to reply with an unequivocal ruling, but rather summarized for the rabbi who asked, that in the opinion of Chavot Yair, when there is no great need it is forbidden l’chatchila (from the outset). And in the opinion of Maharit (1, 97), abortion is prohibited because of chabalah, and is permitted when necessary. Apparently from his words, he was inclined to be lenient. And in the responsa ‘She’elat Yavetz’ (1, 43), Rabbi Emden permitted the abortion an ubar mamzer.

The responsa ‘Chesed Me’Lublin’ (E.H.) concluded that there is a difference of opinion among the Rishonim whether the prohibition of abortion is from the Torah or of rabbinic stature, and if in the opinion of those who believe it is from the Torah, it is permitted to abort in a case of a mother’s great need, even if there is no mortal danger.

In the responsa ‘Mishpatei Uziel’ (section 4, Choshen Mishpat 44), the question was asked about a woman who, in the opinion of the doctors, if allowed to continue her pregnancy would become deaf, and Rabbi Uziel answered that since deafness is a considerable impairment, she is allowed to abort.

And in the responsa ‘Seridei Aish’ (Choshen Mishpat 162), Rabbi Weinberg inclined to be lenient according to the opinion of the majority of Rishonim, that abortion is not considered murder, because the fetus is not yet considered a person.

Our teacher and mentor, Rabbi Shaul Yisraeli (Amud HaYemini 32), also wrote in a similar manner. And this was also the instruction of Rabbi Eliezer Waldenberg in his responsa ‘Tzitz Eliezer’ (chapter 9, 51, 3:3, and many other places), while basing his remarks on a broad and thorough discussion of all aspects of the matter.

The Reason for Past Conclusions

Some twenty-five years ago my sister, who worked as a nurse at Shaare Zedek Hospital, told me that majority of Jewish babies who were born with Down’s syndrome and other far more severe defects came from religiously observant families. This was because the public is unaware that there are poskim who are lenient regarding having an abortion in cases of illness, and consequently, many women do not perform tests while pregnant. And even for a woman who is tested and it turns out that her fetus suffers from severe defects, it is inconceivable to her that there might be room to ask a rabbi a halakhic question.

I was shocked to hear this sad fact, and just to be sure I checked with various doctors, and indeed, it turned out to be true. I thought there was immense value in publicizing the lenient opinion of the poskim in my daily halakha spot on Arutz Sheva, which I broadcasted at the time.

Yet, I knew that some people would argue that I shouldn’t publicize the lenient opinion, lest “the fences are breached” and some women determine the halakha leniently for themselves, to have an abortion for economic or social reasons, or because of minor defects, which are forbidden in the opinion of all poskim.

I went to my mentor and guide, Rabbi Avraham Shapira shlita, Rosh Yeshiva of Mercaz Harav and Chief Rabbi of Israel, to ask his opinion. He was also sad to hear the data, and told me it was very important to publicize the opinion of the lenient poskim because their opinions could be relied on. And when I asked if I could quote his name and opinion, he did not want to determine in favor of one of the views, but instructed me to say that every family may decide whether to ask a rabbi who is inclined l’chumra (to be strict) or l’kula (to be lenient). (Later, I heard that after Rabbi Yisraeli and Rabbi Waldenberg died and he could no longer send questioners to them, he himself instructed to be lenient).

Indeed, for the benefit of the public at large, I taught this halakha in the framework of ‘Pinat Ha’Halacha‘ (‘the Halakha Spot’) on Arutz Sheva. Later on, I summarized these laws in detail in my book ‘Peninei Halakha‘ (Likutim Bet), and in my newspaper column ‘Revivim‘.

The Primary Opinion is that of Leniency

Over the last year I have re-examined this profound issue, and out of my studies, my belief that the lenient opinion is the primary one has strengthened. This is because from the issue in the Gemara, the words of the Rishonim and Achronim, it arises that the prohibition of abortion is because of hashchata, and not murder. Indeed, many poskim of the last generation inclined to be stringent; the minority of them because they believed that abortion is forbidden as murder, and the majority because of the great value of life inherent in the fetus. Some poskim instructed in this manner because they did not rely on the opinion of doctors.

And even though the issue is very severe, it seemingly, it would be appropriate to take into consideration the opinion of the stringent poskim, nevertheless, in this case it is proper to be lenient, because being stringent in such issues can cause terrible suffering to the parents and those born, and sometimes the suffering leads to the break-up of the family. Therefore, in an extremely pressing situation, such as when the fetus suffers from Tay-Sachs or other severe defects, or the fetus is known to a mamzer, or continuing the pregnancy could cause blindness or deafness to the mother – one can rely on the lenient opinion of the poskim, for their opinion is more well-founded. This was the inclination of my rabbis, Roshei Yeshivot (heads) of the Mercaz Harav Yeshiva.

However, in any such serious questions, one must get the opinion of an honest doctor who relates reverently to the life of the fetus, and then ask a rabbi who is familiar with the field.

Ma’aseh Rav

I heard from my father and teacher, Rabbi Zalman Baruch Melamed shlita, that when he was a young teacher in the Mercaz Harav Yeshiva about forty-five years ago, he was approached by a married couple with a question: While pregnant, the woman became ill with German measles and according to the doctors, there is a twenty-five percent chance that the fetus will be deformed. At first, my father went to Rabbi Shaul Yisraeli, one of the heads of the Yeshiva. However, despite the fact that in his book ‘Amud HaYemini’ he wrote abortion was permitted, he did not want to decide this question, and referred my father to his colleague, Rabbi Yosef Shalom Elyashiv, who inclined to be strict in this matter. And indeed, Rabbi Elyashiv said there was no possibility of being lenient without the fear of pikuach nefesh (life endangering situation), but if there is a concern that the woman will become mentally unstable, it is possible to be lenient. My father asked him: And how can we know if there is such concern? He replied: Let the pregnant woman decide.

The woman was not able to decide, and the couple remained in tremendous sorrow. This being the case, my father went to his teacher and mentor, the Rosh Yeshiva, Rabbi Tzvi Yehuda HaKohen Kook ztz”l – who was nearly twenty years older than Rabbi Yisraeli and Rabbi Elyashiv, but was not accustomed to determine halakhic questions – and asked him what to do, given that Rabbi Yisraeli refrained from permitting, and Rabbi Elyashiv was stringent. Rabbi Tzvi Yehudah said to rely on the written answer of Rabbi Yisraeli, and permit the abortion. End of story.

Apparently, Rabbi Yisraeli avoided permitting the abortion because he wrote his response that only when the majority of the chances are that the fetus is ill, is an abortion permitted, and since in the question at hand the risk was twenty-five percent, he abstained from permitting. What Rabbi Tzvi Yehudah instructed was in accordance with the principle written in Rabbi Yisraeli’s response, whereby abortion is forbidden because of the prohibition of causing chabalah,and not because of murder, and in a situation of significant danger, and when the couple is also in a state of great sorrow, it is possible to rely on the foundations clarified in his written response.

This article appears in the ‘Basheva’ newspaper, and was translated from Hebrew.